Copas v. Copas, Nos. 2009–CA–000685–MR

Decision Date03 February 2012
Docket NumberNos. 2009–CA–000685–MR,2009–CA–000720–MR.
Citation359 S.W.3d 471
PartiesKathy Joan COPAS, Appellant/Cross–Appellee, v. Richard Dale COPAS, Appellee/Cross–Appellant.
CourtKentucky Court of Appeals

OPINION TEXT STARTS HERE

Bryan Gowin, Louisville, KY, for appellant/cross-appellee.

Jack W. Flynn, Frankfort, KY, for appellee and cross-appellant.

Before ACREE, MOORE and NICKELL, Judges.

OPINION

ACREE, Judge:

This opinion addresses the combined appeal and cross-appeal from orders of the Shelby Family Court modifying the division of Appellee/Cross–Appellant Richard Copas's military retired pay between Richard and his former spouse, Appellant/Cross–Appellee Kathy Copas. There are three issues before us. First, did the family court abuse its discretion in utilizing Kentucky Rules of Civil Procedure (CR) 60.02(f) to reopen the order dividing the parties' marital property? Second, did the family court abuse its discretion in modifying the language in a previous order concerning the division of Richard's military retired pay? And third, did the family court abuse its discretion in granting Kathy's CR 59.05 motion by adding language to the order which, in effect, designated Richard's disability benefits as marital property and then dividing it between the parties? With regard to the first two questions, we find no abuse of discretion. However, we find the family court did abuse its discretion as to the last issue. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Facts and Procedure

On February 22, 1995, Kathy filed a petition in Shelby Family Court to dissolve her marriage to Richard. On June 18, 1997, the family court entered a limited decree dissolving the twenty-five-year marriage, but reserving judgment on all property issues, including those related to Richard's military retired pay. The court referred the division of marital property issues, inter alia, to the Shelby County Domestic Relations Commissioner (DRC).

On May 21, 1998, the DRC submitted to the court Findings of Fact, Conclusions of Law, and Recommendations. Richard served a total of thirty (30) years in the military and earned the right to military retired pay based on thirty years of service. The DRC found that Richard “accumulated credit for 21 years and 9 months of service during the marriage toward that pension 1 [and] the accumulation during the marriage of [this asset is] marital property.” As a result, the DRC recommended “the amount of Richard Copas's military pension pay attributable to the marriage (21 years and 9 months) be divided equally between Kathy and Richard. On June 3, 1998, the DRC filed amended Findings of Fact, Conclusions of Law and Recommendations, but did not alter its original findings and recommendation concerning Richard's military retired pay. Each party promptly filed exceptions. On September 28, 1999, the family court overruled the parties' exceptions and adopted in toto2 the DRC's Amended Findings, Conclusions, and Recommendations (hereinafter, 1999 Property Order”).

Thereafter, the parties appeared before the family court for a hearing on supplemental exceptions and remaining issues concerning costs and attorney's fees. On November 6, 2000, the family court entered an order resolving all outstanding issues. In its order, the family court referenced Richard's military retired pay, stating, in pertinent part, that the parties agreed that Richard “would do all that is necessary to insure [Kathy] would receive full military benefits to which she may appear entitled, including fifty percent (50%) of [Richard's] pension as ordered [sic] in the [DRC's] Findings of Fact and Conclusions of Law, and Recommendations adopted by this Court.”

The circuit court record reveals no further activity for almost six years. However, on June 14, 2001, years before Richard retired from the military and therefore prior to his receipt of any military retired pay, Kathy had submitted to the Defense Finance and Accounting Service (DFAS), the agency charged with administering and distributing military retired pay, a Department of Defense (DoD) Form 2293, entitled “Application for Former Spouse Payments from Retired Pay.” Kathy completed the form which, in pertinent part, states:

I request payment of: ... a division of property in the amount of $ _____, or 50 percent of disposable retired pay per month.

(Emphasis reflects the blank filled in by Kathy).

In April 2007, Richard retired from active military service.

We pause here to emphasize the effect Kathy's submission of Form 2293 had on the distribution of Richard's military retired pay. When Richard finally retired, DFAS calculated his military retired pay based on 30 years, or 360 months of military service. When Kathy completed Form 2293, she was claiming “50 percent” of the military retired pay Richard earned over the entire 360 months.3 However, the circuit court's order only allowed her to claim 50 percent of Richard's military retired pay attributable to the marriage—that is, 261 months worth (21 years, 9 months, as determined by the circuit court). Her completion of the form as she did disregarded the court's distinction between the marital and nonmarital portions of Richard's military retired pay. The effect is that Kathy claimed, and the DFAS awarded to her, 50 percent of the retired pay Richard earned during the 99 months he served in the military while not married to Kathy—a nonmarital asset to which Kathy was not entitled.

When Richard retired he had earned the right to claim total military retired pay of $4,400.00 per month. Based upon the form Kathy submitted in 2001, DFAS began paying her fifty percent of Richard's total military retired pay, so that both Kathy and Richard began receiving monthly checks in the amount of $2,200.00. Upon retirement, Richard also sought military disability benefits and the Department of Veteran Affairs (VA) determined Richard was forty percent disabled. As a result, he was eligible to receive disability benefits in the amount of $568.00 per month. In accordance with federal regulations, DFAS offset Richard's military retired pay by his disability benefits, reducing his total, non-disability-based military retired pay from $4,400.00 to $3,832.00. DFAS continued to pay Kathy fifty percent of Richard's total disposable military retired pay, or approximately $1,916.00 per month.

On July 17, 2007, Richard filed a motion asking the family court to direct DFAS to only pay Kathy fifty percent of the portion of his disposable military retired pay attributable to the marriage (21 years, 9 months). On July 2, 2008, the family court held a hearing on Richard's motion,4 and on November 17, 2008, entered an order directing DFAS to distribute Richard's military retired pay as follows:

The former spouse, Kathy Joan Copas, is awarded 50% of the disposable military retired pay the member [Richard] would have received had the member become eligible to receive retired pay on December 31, 1994, with the rank of SFC/E7, and with 21 years 9 months of service for basic pay purposes.On November 26, 2008, Kathy filed a motion pursuant to CR 59.05 to alter, amend, or vacate the November 17, 2008 order on the grounds that the family court improperly modified the 1999 Property Order concerning the division of Richard's military retired pay. Kathy also filed a motion requesting a new trial under CR 59.01 and a motion for additional findings under CR 52.02. With respect to Kathy's CR 59.05 motion, Kathy asked the family court to amend its November 17, 2008 order to, inter alia, require DFAS to take Richard's disability income into account when dividing Richard's military retired pay.

The family court held a hearing on January 6, 2009, to address Kathy's motions. On March 11, 2009, the family court denied Kathy's CR 59.01 and CR 52.02 motions, but granted, in part, Kathy's CR 59.05 motion. In particular, the court altered its November 17, 2008 order to read as follows:

The former spouse, Kathy Joan Copas, is awarded 50% of the disposable military retired pay the member [Richard] would have received had the member become eligible to receive retired pay on June 18, 1997, with the rank of SFC/E7 and with 21 years 9 months of service for basic pay purposes.

The [DFAS] Office is further directed to take into consideration in its computation the disability of the Respondent which existed during the marriage relationship with the date of marriage of June 17, 1972 and Divorce Decree entered June 18, 1997.

Kathy promptly filed an appeal challenging the family court's authority to reopen and modify the 1999 Property Order with respect to Richard's military retired pay. Richard filed a cross-appeal, claiming the family court improperly added additional language requiring DFAS to take into consideration his disability benefits in dividing his military retired pay. We address each party's arguments in turn.

Standard of Review

The decision to grant or deny a motion under CR 60.02 or CR 59.05 rests within the trial judge's sound discretion. See Schott v. Citizens Fidelity Bank & Trust Co., 692 S.W.2d 810, 814 (Ky.App.1985). Accordingly, we apply an abuse of discretion standard of review to a family court's rulings on CR 59.05 and CR 60.02 motions. Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 483 (Ky.2009); Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky.1994). The test for abuse of discretion is “whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Division of Richard's Military Retired Pay

Kathy asserts the family court abused its discretion in reopening the 1999 Property Order pursuant to CR 60.02(f). In particular, Kathy argues Richard failed to present any reason justifying extraordinary relief which would authorize the family court to reopen the 1999 Property Order under CR 60.02(f).

...

To continue reading

Request your trial
16 cases
  • Patten v. Patten
    • United States
    • Kentucky Court of Appeals
    • May 17, 2019
    ...Bishir, 698 S.W.2d 823, 825 (Ky. 1985) (indicating a trial court may reopen a divorce decree pursuant to CR 60.02(f)); Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012) ("[I]n order for a court to modify a judgment dividing marital property after ten days from the date the final order was......
  • Szewczyk v. Goff-Szewczyk
    • United States
    • Kentucky Court of Appeals
    • June 11, 2021
    ...to reopen the judgment or order pursuant to the provisions of CR 60.02. Fry v. Kersey, 833 S.W.2d 392 (Ky. App. 1992); Copas v. Copas, 359 S.W.3d 471 (Ky. App. 2012). Edward filed his motion for relief pursuant to the provisions of CR 60.02(d) and (f). In relevant part, that rule provides t......
  • Ins. Co. of N. Am. v. Green Turtle Bay, Inc.
    • United States
    • Kentucky Court of Appeals
    • October 18, 2013
    ...Rapid American, 190 S.W.3d 348 (Ky. App. 2006); Wildcat Property Management, LLC v. Reuss, 302 S.W.3d 89 (Ky. App. 2009); Copas v. Copas, 359 S.W.3d 471 (Ky. App. 2012); Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478 (Ky. 2009). The test for abuse of discretion is "whether the tri......
  • Greulich v. Fehrenbacher
    • United States
    • Kentucky Court of Appeals
    • October 9, 2020
    ...is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012) (citations omitted).ANALYSIS Cori argues the circuit court erred by granting Jovita's CR 60.02 motion, extending Dennis'......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT